Scott v. State , 295 Ga. 39 ( 2014 )

295 Ga. 39
FINAL COPY
S13G1042. SCOTT v. THE STATE.
HINES, Presiding Justice.
This Court granted certiorari to the Court of Appeals in Scott v. State, 320
Ga. App. XXVI (Case No. A12A2293, decided March 11, 2013) (not to be
officially reported) to consider whether former OCGA § 16-13-31 (a) (1), which
set forth the elements of the felony offense of trafficking in cocaine, required
proof that the defendant had knowledge of the weight of the drug. Finding that
the Court of Appeals erred in concluding that proof of the knowledge of the
weight or quantity of cocaine was not an element of the offense, we reverse and
remand.
Kenneth Scott was convicted of trafficking in cocaine and related
charges after he was found in possession of, inter alia, 37 individually wrapped
packets of powder cocaine, a twist-tied package of cocaine, a “slab” of cocaine,
crack cocaine packaged for resale, packages of marijuana, a mirror and a cutting
tool, and several loaded handguns. The state crime laboratory determined that
among the substances seized was 72.65 grams of a cocaine mixture registering
72.6 percent purity of cocaine.
At the times of the crimes in 2009 and Scott’s trial in 2010, former OCGA
§ 16-13-31(a) (1) provided, in relevant part:
Any person who knowingly sells, manufactures, delivers, or brings
into this state or who is knowingly in possession of 28 grams or more
of cocaine or of any mixture with a purity of 10 percent or more of
cocaine, as described in Schedule II, in violation of this article commits
the felony offense of trafficking in cocaine . . . .
(Emphasis supplied.)
In his appeal to the Court of Appeals, Scott argued that his conviction for
trafficking in cocaine had to be reversed because the evidence failed to show
that he knew that the cocaine weighed more than 28 grams; he maintained that
knowledge of the quantity of the drug was an element of the offense. Citing its
own precedent, the Court of Appeals held that proof of knowledge of the
quantity of cocaine was not an essential element of the offense of trafficking in
cocaine. Scott v. State, supra at Division 6 (d). But, such holding is in error.
1. The plain language of the version of former OCGA § 16-13-31 (a) (1)
at issue1 dictates the conclusion that knowledge of the quantity of the drug was
1
The version of the statute applicable to Scott was effective July 1, 2003 to June 30,
2012. The statute was amended, effective July 1, 2012 to June 30, 2013, and its present version
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an element of the crime. It contains express scienter requirements, that is,
knowledge of the nature and amount of the drug and of being in possession of
it. And, certainly where “knowledge” is made part of an offense, the State has
the burden to prove the defendant’s guilty knowledge. Phagan v. State, 268 Ga.
272, 278 (3) (c) (486 SE2d 876) (1997).
Finding “knowingly” in the former cocaine trafficking statute to be a
requirement as to each of the elements of the crime is consistent with prior strict
constructions of the statute and with how the term “knowingly” has been applied
in other statutes. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988);
Bundren v. State, 247 Ga. 180 (274 SE2d 455) (1981). Indeed, a criminal
statute that introduces the elements of a crime with the word “knowingly” is
ordinarily construed as applying that word to each element of the offense.
Flores-Figueroa v. United States, 556 U.S. 646, 652 (II) (129 SCt 1886, 173
LE2d 853) (2009).
Furthermore, a statute is to be construed “‘to give sensible and intelligent
effect to all its provisions and to refrain from any interpretation which renders
any part of the statute meaningless.’” Motors Acceptance Corp. v. Rozier, 278
became effective July 1, 2013.
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Ga. 52, 53 (597 SE2d 367) (2004). And, the interpretation by the Court of
Appeals, has done just that; it renders meaningless the express requirement of
knowledge of the amount of cocaine possessed. The amount of the drug
possessed may certainly be significant in regard to the viewed severity of the
offense, and the consequent sanction for its commission. See, e.g., OCGA § 16-
13-30, which criminalizes, inter alia, possession of lesser amounts of cocaine.
In Wilson v. State, 291 Ga. 458 (729 SE2d 364) (2012), which was noted
in the opinion of the Court of Appeals, this Court acknowledged the potential
merit of Wilson’s argument that former OCGA § 16-13-31 (c) required proof
that he knew the amount of the controlled substance he possessed. However, a
definitive determination of the issue was unnecessary in that case because the
question on appeal was whether the trial court’s instruction to the jury that a
conviction of trafficking did not require such proof constituted “plain error.”
Id. And, because of the existence of precedent from the Court of Appeals
supporting such instruction, this Court concluded that giving it could not
constitute “plain error.” Id.
2. In a 2013 amendment to OCGA § 16-13-31, the General Assembly
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deleted “knowingly,” inter alia, throughout subsection (a).2 This legislative
change does not explain what the term”knowingly” was intended to mean when
the statute was originally passed. See, e.g., Dees v. Logan, 282 Ga. 815, 817
(653 SE2d 735) (2007). What is more, such change is consistent with
2
Present OCGA § 16-13-31 (a) provides:
(1) Any person who sells, manufactures, delivers, or brings into
this state or who is in possession of 28 grams or more of cocaine or of any
mixture with a purity of 10 percent or more of cocaine, as described in
Schedule II, in violation of this article commits the felony offense of
trafficking in cocaine and, upon conviction thereof, shall be punished as
follows:
(A) If the quantity of the cocaine or the mixture involved is
28 grams or more, but less than 200 grams, the person shall be
sentenced to a mandatory minimum term of imprisonment of ten
years and shall pay a fine of $200,000.00;
(B) If the quantity of the cocaine or the mixture involved is
200 grams or more, but less than 400 grams, the person shall be
sentenced to a mandatory minimum term of imprisonment of 15
years and shall pay a fine of $300,000.00; and
(C) If the quantity of the cocaine or the mixture involved is
400 grams or more, the person shall be sentenced to a mandatory
minimum term of imprisonment of 25 years and shall pay a fine of
$1 million.
(2) Any person who sells, manufactures, delivers, or brings
into this state or who is in possession of any mixture with a purity
of less than 10 percent of cocaine, as described in Schedule II, in
violation of this article commits the felony offense of trafficking in
cocaine if the total weight of the mixture multiplied by the
percentage of cocaine contained in the mixture exceeds any of the
quantities of cocaine specified in paragraph (1) of this subsection.
Upon conviction thereof, such person shall be punished as
provided in paragraph (1) of this subsection depending upon the
quantity of cocaine such person is charged with selling,
manufacturing, delivering, or bringing into this state or possessing.
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legislative confirmation that proof of a defendant’s knowledge of each element
of the trafficking statute, including weight of the drug, was required in former
versions of the statute, but that the General Assembly no longer intends that it
be so. This is reinforced by the General Assembly’s enactment of OCGA § 16-
13-54.1,3 effective July 1, 2013, which expressly provides that a defendant's
knowledge of the weight or quantity of the controlled substance is not to be an
essential element of the offense so that it must be proven in order to obtain a
conviction. Indeed, the enacting legislation, Ga. Laws 2013, p. 22, § 6 states
that the Act is to apply only to offenses which occur on or after July 1, 2013, the
effective date, and that any offense occurring prior to such date is to be
governed by the statute in effect at the time of such offense.
3. Simply, former OCGA § 16-13-31 (a) (1), applicable to this case,
required proof that the defendant had knowledge of the weight of the cocaine.4
3
OCGA § 16-13-54.1 provides:
When an offense in this part measures a controlled substance or marijuana by
weight or quantity, the defendant's knowledge of such weight or quantity shall not be an
essential element of the offense, and the state shall not have the burden of proving that a
defendant knew the weight or quantity of the controlled substance or marijuana in order
to be convicted of an offense.
4
Cleveland v. State, 218 Ga. App. 661, 662-663 (1) (463 SE2d 36) (1995), and its
progeny, which include Beville v. State, 322 Ga. App. 673 (1) (745 SE2d 858) (2013); McGee v.
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Accordingly, the judgment of the Court of Appeals is reversed and the case is
remanded to that Court for consideration consistent with this opinion.5
Judgment reversed and case remanded. All the Justices concur, except
Nahmias and Blackwell, JJ., who concur in judgment only as to Division 2.
Decided March 28, 2014 – Reconsideration denied April 10, 2014.
Certiorari to the Court of Appeals of Georgia – 320 Ga. App. XXVI.
Robert L. Persse, for appellant.
S. Hayward Altman, District Attorney, Rizza C. Palmares, Kelly A. Jenkins,
Assistant District Attorneys, for appellee.
State, 316 Ga. App. 661, 664 (1) (730 SE2d 131) (2012); and Barr v. State, 302 Ga. App. 60, 61-
62 (1) (690 SE2d 643) (2010), are hereby overruled to the extent that they hold that knowledge of
the quantity or weight of the cocaine is not an essential element of the offense of trafficking in
cocaine as set forth in former OCGA § 16-13-31 (a) (1).
5
The Court of Appeals is to determine whether the evidence at trial was sufficient to
prove beyond a reasonable doubt that Scott knew that the cocaine he possessed weighed 28
grams or more.
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